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U.S. Department of Labor Updates its Guidance on FFCRA Paid Leave Provisions

March 31, 2020


On Friday, the U.S. Department of Labor (“DOL”) updated its Frequently Asked Questions (“FAQs”) for employers and employees addressing the Families First Coronavirus Response Act (“FFCRA”) paid leave provisions. The FAQs are a helpful, interpretive resource for employers grappling with rapidly changing business circumstances amidst the COVID-19 pandemic, providing DOL guidance on 59 key paid leave questions ahead of DOL regulations to be issued in April. Below are some of the DOL’s key clarifications: 

Effective Date

The FAQs confirm that FFCRA’s paid leave provisions take effect on April 1, 2020 and apply to leave taken between April 1, 2020 and December 31, 2020.

500-Employee Threshold 

The DOL clarified that the “500 or fewer employees” calculation must be made “at the time your employee’s leave is to be taken.”  Full-time, part-time, and other employees, including employees currently on leave, must also be included in the calculation. Only employees within the United States (and its territories) should be included. Independent contractors (as defined by the Fair Labor Standards Act) should not be included. The DOL also explained that the Fair Labor Standards Act’s (“FLSA”) “joint employer” test and the Family and Medical Leave Act’s (“FMLA”) “integrated employer test” apply to both types of FFCRA leave.

Calculating Hours for Part-Time Employees & Pay Due to Employees

A part-time employee is entitled to leave for his or her average number of work hours in a two-week period.  A part-time employee’s hours are calculated based on the number of hours the employee is normally scheduled to work.  If the normal hours scheduled are unknown or if the schedule varies, a six-month average to calculate the average daily hours can be used.  If the employee has not been employed for at least six months, the number of hours that the employer and the employee agreed that the employee would work upon hiring can be used.

The DOL also clarified that overtime hours are included in pay due under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”): employees can be paid for more than 40 hours in a week if the employee would have been normally scheduled to work more than 40 hours. However, the Emergency Paid Sick Leave Act (“EPSLA”) caps paid sick leave at 80 hours over a two-week period. 

Paid Sick Leave in Addition to Expanded Family Medical Leave 

An employee may not take more than two weeks of paid sick leave under the EPSLA, even if the employee has more than one reason to take sick leave as provided by the EPSLA.

An employee may be eligible for both paid sick leave and expanded family and medical leave to care for a child whose school or childcare is closed or unavailable due to COVID-19 related reasons. In this situation, the EPSLA provides paid sick leave for the first ten workdays of expanded family medical leave, and the EFMLEA provides for two-thirds regular pay for the remaining ten weeks of leave. While the EPSLA covers multiple COVID-19 related scenarios, EFMLEA leave only applies in the school/childcare situation.

The DOL “encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.” For example, the DOL expressed that if an employer allows an employee to telework, and the employer and employee agree, the employee may take paid sick leave or expanded family medical leave intermittently while teleworking.

The FAQs also confirm that an employee who has exhausted the 12-week FMLA entitlement will not be entitled to an additional period of leave under the EFMLEA. EFMLEA eligibility depends on how much leave the employee has taken in the previous twelve- month period. For example, an employee that took two weeks of FMLA leave in January now may qualify for only ten weeks of expanded family and medical leave, rather than twelve.  The FFCRA does, however, provide an employee with two weeks of paid sick leave regardless of whether the employee has exhausted his or her FMLA leave.

Documentation 

Employees must provide documentation to their employees in support of their paid sick leave, including qualifying reasons for leave, statement that the employee is unable to work, and the date(s) for which leave is requested. Furthermore, the DOL advises employers to require their employees to provide documentation in support of their leave, such as a notice that has been posted on a government, school or day care website, or published in a newspaper, or an email from an employee of official of the school, place of care, or child care provider.   

Layoffs and Furloughs

Employees are not entitled to take leave if their employer closes its worksite before the employee’s leave begins, regardless of whether the closure occurs before or after April 1, 2020.  If, however, the employer closes while an employee is on leave, the employer must provide the remaining paid leave to which the employee was entitled before the closure.  Furthermore, if an employee’s hours are reduced prior to the employee beginning leave, the employee may not use leave for the hours the employee is no longer scheduled to work

Similarly, if an employee is furloughed prior to beginning FFCRA leave, that employee is not entitled to take leave.

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The FAQs also provide guidance regarding exemptions for employers with fewer than 50 employees, leave-related documentation, closure of worksites, reduced hours, health coverage, and collective bargaining agreements. The DOL wrote that it will continue to update its guidance and issue regulations in April.

If you have any questions or concerns regarding the FFCRA’s paid leave provisions and its implications for your business, Montgomery McCracken’s Labor and Employment attorneys are available to assist. Visit the firm’s Coronavirus (COVID-19) Resource Center for more information and updates on this constantly evolving situation.